Podcast: (Un)packing the Supreme Court with Yale Law's Emily Bazelon

TRANSCRIPT: (UN)packing the Supreme Court with Yale's Emily Bazelon

Emily Bazelon:

It's really all about appearance, but that's important. Judges are supposed to appear unimpeachable, so that they don't get impeached.

Ian Bremmer:

Hello and welcome to the GZERO World Podcast. This is where you'll find extended versions of my interviews on public television. I'm Ian Bremmer and today we are talking about the highest court in the land, the court of last resort, the Supreme Court of the United States. It's been one year since SCOTUS struck down Roe versus Wade, eliminating the constitutional right to abortion after 50 years of precedent. In the months following the decision, public confidence in the court fell to an all time low, thanks to the conservative super majority quickly moving US law away from the political center, multiple controversies surrounding Justice Clarence Thomas and a refusal to address questions about Justice's ethical standards. Has the Supreme Court become overly politicized? Can public faith be restored in a deeply partisan America? And what major rulings are still to come? This session, I'm talking with Yale Law School legal expert, New York Times Magazine columnist and co-host of Slate's Political Gabfest podcast, Emily Bazelon. Let's get to it.

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Ian Bremmer:

Emily Bazelon, thanks so much for joining me again.

Emily Bazelon:

Thanks for having me.

Ian Bremmer:

Great. The last time you were with me about a year ago, I think it was, we talked of course a lot about the Dobbs decision and specifically that so much was going to matter in terms of where we were going to see major restrictions and what kind of restrictions we'd see state by state. Have you been surprised by the politics around this over the last 12 months?

Emily Bazelon:

I have been surprised. So here's what's not surprising. 14 conservative states have banned abortion, more or less, and there are more of severe restrictions and bans pending in a few other states. I think we expected that. What has been surprising have been the ballot initiatives that have uniformly so far protected abortion rights in the six states where they have been up for a vote, including in Kansas-

Ian Bremmer:

A very conservative state, very red state.

Emily Bazelon:

Exactly. And Montana and Michigan, a famously purple state and Kentucky actually also another red state. So I think what we're seeing here is that when abortion is put to voters directly, one issue they can concentrate on, they are more interested in protecting abortion rights than I think a lot of people on the right and the left expected.

Ian Bremmer:

Is this because these individual referenda were overly restrictive compared to, I mean, what Roe v. Wade originally was protecting?

Emily Bazelon:

Yes, but what's interesting about the ballot initiatives is some of them protect abortion rights up to viability. And so if abortion opponents thought they would succeed by making voters focus on second trimester abortions as opposed to first trimester abortions, which are much more common, that strategy does not seem to be working so far for them at the ballot box.

Ian Bremmer:

I mean, the vast majority of people that are getting abortions are getting abortions early when they find out about it. I mean, that's well over 90%, 95%. That's my understanding, right?

Emily Bazelon:

Yes, it's about 90% in the first trimester. You're absolutely right. As a political issue, sometimes second trimester abortions get emphasized by opponents as a way of making it seem as if that's more common than it really is.

Ian Bremmer:

I mean, we're talking so much of the politics here actually has very little to do with the rights that people experience. Is that correct?

Emily Bazelon:

Yes. I think that's true. The other thing that we should talk about are abortion pills.

Ian Bremmer:

I was just about to go there. So it's been a huge issue for the corporations that are offering or not offering them in red and blue states. It's been a huge issue for the legality and whether or not they are meant to be legal in the entire country. Can you send them over state lines? Talk about the politics of that.

Emily Bazelon:

Yeah. So abortion pills now account for more than half of the abortions in the United States and I think before Roe was overturned, people thought that women seeking abortions would fly to New York. It turns out that while they're willing to drive quite far distances, people who are struggling to get abortions, people of color, people without a lot of money, people who need to line up childcare, take time off their jobs. Women in those positions are more interested in staying home to have abortions that they manage themselves than I think a lot of clinics and pro-choice organizations expected.

And so what we're seeing is that people are finding a way to get pills. It's like a giant legal gray area. Into states with bans or restrictions, a lot of the pills so far are coming from countries like India, which means they can take a while to get here. But there's an increasing effort on the part of blue states to pass shield laws that try to protect abortion providers in their states. So a doctor in New York who prescribes pills across state lines into a state like Texas, that is going to raise a lot of unanswered legal questions going forward. But it's an important potential avenue of access.

Ian Bremmer:

Are there potential legal repercussions for a doctor in a state where it is legal to provide abortion pills, providing them to someone who clearly is in a state where that would be illegal?

Emily Bazelon:

Well, states like Massachusetts are trying to do their best to say, "We will not cooperate. If a state with an abortion ban wants to prosecute one of our doctors for prescribing pills across state lines, we're not going to extradite her. We're not going to let you use our court system to go after her medical license or to sue her." Whether that works in the end, whether states can oppose each other's efforts to enforce laws like that, that's a big open question.

Ian Bremmer:

Would that doctor then face liability if they decided to go to the state? I mean, so in other words, you're in New York, you're just not going to that state anymore.

Emily Bazelon:

Right. I think the doctors who are planning to do this, and there are several of them, they are not planning to travel to states where there could be a warrant for their arrest. And so that ability to travel is something they are willing to give up.

Ian Bremmer:

Is that new?

Emily Bazelon:

This is new.

Ian Bremmer:

Has that ever happened before where people from individual states in the US just couldn't travel to other states because they'd suddenly get arrested?

Emily Bazelon:

I always hesitate to say nothing has ever happened before, but to see this kind of conflict over state law, you have to go back to the Civil War.

Ian Bremmer:

This is like Putin going to South Africa and the International Criminal Court. I mean, it feels like that's what we're talking about here.

Emily Bazelon:

Right. And what we're talking about, I think it bottom here is a real clash over law and morality. So a state like Texas is saying that abortion is murder and the state of New York is saying this is a human right. We want our abortion providers to be able to help women in states like Texas. That's such a fundamental clash. That's what we're seeing here.

Ian Bremmer:

Even so, I mean there have been people that have been very strongly on both sides of this issue for time immemorial in the United States, but the idea that suddenly a basic legal system architecture of the US just doesn't apply in various states and that a person's ability to stay out of jail would depend on what state they're in. That seems a little bit nutty for 2023.

Emily Bazelon:

It's really surprising. Usually when Texas wants to extradite you and you're somewhere else, that other states says, "Here."

Ian Bremmer:

It's going to extradite you. Yeah.

Emily Bazelon:

They hand you over. And so yes, you're talking about a big disruption to American law. One thing that's important to note is that in almost every state, it is legal to self-administer an abortion. So that means the person receiving the pills and taking them is not subject to criminal charges. And that's just important for thinking about who's taking risks here and how this all lands.

Ian Bremmer:

That's even true in states that have banned abortion as a legal right.

Emily Bazelon:

Yes. There are only a couple of exceptions to that in all of the 50 states and it's not totally clear how those laws apply.

Ian Bremmer:

So the doctors are the ones that are actually facing the obligation and the liability?

Emily Bazelon:

That's what it looks like. Yes.

Ian Bremmer:

That's interesting. Why is it that the states that consider abortion to truly be a murder would actually say, "We're not going to prosecute the person who's committing the murder."

Emily Bazelon:

It's a great question. I think it has to do with the evolution of the movement to oppose abortion. That movement has gone from blaming women and trying to punish them to trying to present itself as protecting them and their health and rights. Now, whether you think that's true or not, if you're going that way and you say, "We're the protectors of women," then you don't subject them to criminal charges, you say it's those bad abortion providers who we're going to go after on your behalf.

Ian Bremmer:

Now, that's not very Handmaid's Tale?

Emily Bazelon:

It's not directly Handmaid's Tale, it's true. And one of the reasons for that is otherwise you get accused of being the Handmaid's Tale.

Ian Bremmer:

Well glad we cleared that up. Okay, so let's move on to something a lot easier, which is the ethics of the Supreme Court. I have certainly been surprised to see Clarence Thomas so heavily on our bingo cards right now. Talk a little bit about what is at stake with this case?

Emily Bazelon:

So Clarence Thomas is really testing a very poor design at the Supreme Court, which is that the justices themselves are not subject to any code of judicial ethics. That's a bad design. Nobody should be above the law and have no oversight, but that is the way things have worked out. Federal judges on lower courts are subject to this code, but not the Supreme Court Justices themselves. There aren't any ways to police whether they recuse themselves from a case they might have an interest in, it's up them. In this case, what we're seeing is evidence that Justice Thomas took lavish gifts, travel, paying for the private school of a child whose guardian he was, from this one friend, a super rich guy named Harlan Crow. And when you look at the Ethics and Government Act, which is a law that Congress passed in the '70s, it looks like Thomas violated that law because you're supposed to disclose these kinds of gifts and you're not supposed to take them in the first place.

Ian Bremmer:

It violated it irrespective of the fact that there isn't a code of ethics for the Justices?

Emily Bazelon:

Exactly. Yes. This is a law, but the court has never acknowledged that the Supreme Court is subject to this particular law. They, it seems, might want to argue, "Well, we're a separate branch. You can't tell us what to do." That's a unresolved question. In order to resolve it-

Ian Bremmer:

It would ultimately have to be resolved by the Supreme Court, I take it?

Emily Bazelon:

Exactly. That's a problem.

Ian Bremmer:

That's a problem. It's turtles all the way up.

Emily Bazelon:

And to get started even figuring this out, the Biden administration would have to prosecute or bring some kind of action against one of the Justices, which has its whole own awkwardness to it. So there's really this problem here and the predicament that Justice Thomas had gotten the court in you might think would motivate Chief Justice Roberts, the court has his name on it, it's the Roberts Court, might motivate him to try to get the Justices together over the summer to come up with some way of binding themselves to some set of rules to address this problem. Because there's just really no question that the American public is losing faith in the Supreme Court. You look at its public approval ratings, the measures of-

Ian Bremmer:

Lowest in history.

Emily Bazelon:

Yes, lowest in history. People do not have faith that this is a non-political institution and that's what courts are supposed to be, at least in theory, they're supposed to be doing something called law that's separate from politics.

Ian Bremmer:

Now, it would've seemed to me, again, taking a view outside that a Supreme Court, which made a partisan decision of the outcome of a presidential election in the United States would have suffered more backlash in how partisan, how political it was perceived to be. And here, of course, talking about Bush versus Gore, than one where say, Judge Thomas doesn't bother to disclose the fact that he got some sweet deals from some random billionaire. What am I missing here?

Emily Bazelon:

Yeah, it's another great question. Well, you do see people's approval of the court sink after Bush versus Gore, but you're right, then you see it recover. The institution as a whole weathered that crisis. I think what's happening now is that there is a strong conservative majority that's going really far to the right on abortion, on voting rights, on other issues. All of its members were appointed by Republican presidents. The liberals on the other side, all appointed by Democrats. So you have partisan politics on the court, partisan affiliation lining up with ideology and you have these huge decisions in areas like abortion or access to guns that Americans really care about. So then when you layer on top of that, what looks like certainly the appearance of impropriety from Justice Thomas, some idea potentially of corruption, whether that's true or not, that kind of tarnish on the court, I think it gets to people in a particular way because the decisions are lining up with this crisis in the courts.

Ian Bremmer:

Now there's no remote finding of corruption at this point at all? There's no evidence of that at this point?

Emily Bazelon:

No. It's really all about appearance. But that's important, judges are supposed to appear unimpeachable so that they don't get impeached. Their integrity has to be really strong and pure and I think that's what's at issue here.

Ian Bremmer:

Is Thomas's wife part of this appearance thing? And is that fair in your view? I mean, we know that she was involved in trying to get people to overturn the outcome of the 2020 election.

Emily Bazelon:

Yeah. And she also was being paid in part at some point by Harlan Crow. So yes, I think she is part of the story, especially because last year there was a case before the Supreme Court involving the investigation into the January 6th. What kind of access should prosecutors and investigators have to text messages from Trump's staff, including Mark Meadows, his former chief of staff?

Ian Bremmer:

Who Ginni Thomas was texting.

Emily Bazelon:

And Ginni Thomas was texting her. Justice Thomas was the only vote against allowing access to these text messages. Then we see the messages, we see Ginni Thomas's text, that seems like a classic case where a Justice would recuse himself but he didn't do that.

Ian Bremmer:

Should have recused himself because he voted to protect his wife.

Emily Bazelon:

I mean, he may or may not have known he was doing that, but just the way the whole thing played out adds to this cloud over him in a way that's really not helpful to the reputation of the court.

Ian Bremmer:

Is it remotely possible to, I mean, appoint nonpartisan Justices in this environment? I mean, Justices used to get votes once they got through from pretty much everybody. That doesn't happen anymore.

Emily Bazelon:

You're right. I mean, there was this period, at least from the '40s to say the '80s or '90s, where lots of senators voted routinely for Supreme Court appointees, whether or not they were put forward by their own party. That era is lost to us now. And you can give a lot of explanations for that, Republicans like to blame the hearings about Robert Bork, in which Bork, who was this very conservative Reagan appointee, went down along partisan lines. Democrats like to say, "Well, conservatives really politicized the court by putting up nominees like Bork, by being so focused on tying the court to things like abortion rights, which have this sharp partisan divide in the United States." Whatever the reasons for it, we are at this extremely politicized moment for Supreme Court appointments in which it's gotten hard to imagine a Senate that was in the opposition party to the President approving anybody.

Ian Bremmer:

Now, I don't spend a lot of time thinking about the court aside from when you and I are talking, and I want to ask you, because you do more broadly, what does the United States lose? How much does it matter if the Supreme Court is seen to be just another partisan institution? So what are the implications?

Emily Bazelon:

So in the United States, if the Supreme Court is seriously out of step with the American public, it's fine for the American public to push back. The American public has a role to play in deciding what the Constitution means. In the end, this is a document that belongs to all of us and so democratic participation is key. And it doesn't matter if the court is out of step to the left or to the right, the public should be able to assert itself. The presidents who choose Supreme Court nominees, the senators who decide to confirm them, we elect those people. And so people's views of the court in the end should shape the court. That's how our system is set up.

There is a concern that internationally, the American Supreme Court has been a real symbol for a strong judiciary and that that is something other countries lack. We have a very strong, maybe too strong judiciary, but some other countries don't have strong enough judicial branches. And so when I talk to people who study constitutions in other countries, they worry that the diminishing reputation of the American Supreme Court could make people lose faith in courts elsewhere.

Ian Bremmer:

I also worry just what happens if Americans feel as if their courts have been captured by a small number of elites, by special interests, by people with money. I mean, we see already so many people believe that the regulatory system in the United States is captured by lobbies, by the private sector, by individuals with a lot of money, by corporations, and it makes people feel like the system is illegitimate. And do you think that is starting to happen with the feeling, with the perception of the Supreme Court? Is it that level?

Emily Bazelon:

Yeah, I think these things feed into each other actually because one of the things the court is doing is really policing the way federal agencies work, in a way that could give more power to corporate lobbyists. I think it depends, in your response to this, how much of an institutionalist you are. So for the Supreme Court Justices, they have a lot at stake in the vaunted, kind of Olympian image of the court. But if the court isn't living up to American's expectations, then Americans should be able to express that.

Ian Bremmer:

So I want to get to this recent case around the EPA, which is related to whether or not the Supreme Court is going to limit the ability of existing institutions to make regulations and inserting itself around wetlands, for example, arrest. Talk a little bit about the importance of this case.

Emily Bazelon:

Yeah. Well, first of all, you're right. We have a Supreme Court that is very skeptical of the power of federal agencies to enforce and make regulations. And of course, that is itself a stance that tends to give corporations more power because the EPA is the one saying to various companies, "You can't pollute our water or our air."

Ian Bremmer:

Unless the EPA is run by people that actually come from those industries and then say, "We'd like to facilitate that."

Emily Bazelon:

Yeah. Usually at least the career people, the people who are there forever at the EPA are not beholden, are not captured in the same way. And if you don't have the EPA making the rules, then you're going to have lobbyists influencing Congress directly. So probably having the EPA have more power is less capturing, though nothing's perfect, of course. So in this particular case, a couple in Idaho sued and the court has really cut back in response to this lawsuit on how much the EPA can regulate wetlands. The technical dispute in the case is about the word adjoining in the Clean Water Act. When is a wetland adjoining a US river or ocean, whatever? The court said that they had to be right up next to each other. But the upshot of this is that millions of acres that have been regulated up till now won't be anymore. And so when you think about the record of the Clean Water Act, which has been really important for preserving and cleaning up Americans waterways and rivers, now the EPA has a lot less reach to do that.

Ian Bremmer:

And is that a trend that we are seeing more broadly? Where are the other places that we're seeing the Supreme Court really infringe on the ability of American federal agencies to do their job, to regulate, to oversee?

Emily Bazelon:

Last year, the Supreme Court told the EPA it had much less power to regulate carbon emissions under the Clean Air Act. So what you're seeing so far are a lot of environmental consequences. There are upcoming lawsuits about the Food and Drug Administration, for example, that could broaden the court's skepticism about federal agencies.

Ian Bremmer:

So we also have these cases involving education right now, one on affirmative action, another on student loans. Hot button issues in both cases, where are they heading?

Emily Bazelon:

Well, it looked at oral argument like the Supreme Court was ready to end race-based affirmative action. These are lawsuits against Harvard and the University of North Carolina and the Justices seemed skeptical that race-based affirmative action is consistent with, the conservative Justices, with their view of the Constitution as being totally race blind. And there're also issues in that case about the way in which Asian American applicants have been treated, especially by Harvard.

Ian Bremmer:

Whose numbers have been kept down at Harvard compared to the scores that that they are receiving?

Emily Bazelon:

Yeah. Exactly. Not compared to the number of Asian Americans in the country, but compared to their SAT scores. Yes, for sure.

Ian Bremmer:

And the student loan issue?

Emily Bazelon:

And there's also a challenge to President Biden's Loan Forgiveness Program that's before the court and there is a boring but important technical problem with the plaintiff's case. Missouri is suing on behalf of its higher education loan authority saying that it will lose a lot of money because of the Loan Forgiveness. Not clear that that's really true at all or whether Missouri can just sue on behalf of this agency, which is not itself named in the suit. On the merits, I think President Biden's side has a challenge, which is that Biden forgave loans under the Heroes Act that was originally passed to address a national emergency after 9/11, it's been extended. The idea is that the loan forgiveness is necessary for pandemic relief.

Ian Bremmer:

Which is now over.

Emily Bazelon:

Right. The National Emergency for COVID ended in May. The Biden administration says, "Well, there can still be bad financial impacts on people rolling out from the pandemic." We'll see whether the court accepts that explanation.

Ian Bremmer:

As we head towards 2024 and an election that is almost certain to have the same level or more polarization concerns about the way it's going to be managed, oversight state by state. Talk about some of the things we should be watching out for in terms of the role of the judiciary?

Emily Bazelon:

Yeah. Well, another thing the Supreme Court is skeptical of is the reach of the Voting Rights Act. And so this term, there is a case in Alabama where Alabama did redistricting in a way that people argue dilutes the power of black and Latino voters to elect the candidate of their choice. If the court says that Alabama's map is fine, then you're just going to see less enforcement of an important part of the Voting Rights Act. And then there's another case from North Carolina also about the reach of the Voting Rights Act that is introducing a really extreme theory called the Independent State Legislature Theory, that in theory could give legislatures the power to overturn elections or set rules in a way where they get to pick the winner in a presidential election. It did not seem at oral argument that the Justices, even the conservative Justices, really had the stomach for the most extreme version of this Independent State Legislature Theory. But we don't have a decision in that North Carolina case yet, so that is still up for grabs.

Ian Bremmer:

Is there a useful distinction to be made here? I mean, I understand that the majority of the court is conservative in temperament and ideology and their belief about the role of founding documents in the US political system. They've been appointed by these political players, but it's not like they are working together to accomplish a political goal. In other words, there's no reason to believe the judiciary is not independent even though it's political. Is that a correct statement?

Emily Bazelon:

I think that's fair. I think when you look back historically, what you see is the conservative movement really energized about a few social issues, abortion, access to guns, religious liberties. And then you see a great deal of success in that movement propelling people onto the Supreme Court and the lower courts when Republicans are in power who are really interested in those issues and deeply committed to them. And that's politics. And it's the way in which politics in our constitutional system can shape American law. It doesn't mean the people who get onto the court aren't thinking independently, it just means that they come from this world the same way if liberals were pushing really hard for their people would be happening on the left.

Ian Bremmer:

Which they were in the war in court, for example, right?

Emily Bazelon:

Yes.

Ian Bremmer:

Historically?

Emily Bazelon:

Yes. Historically.

Ian Bremmer:

I say this only because I want people to see or sense the difference between a political leaning court in the United States, one way or the other, and a court in Turkey or a court in Hungary or God forbid, a court in Russia, which of course has no independence whatsoever, but actually is simply an arm of an authoritarian government. That is not what we are remotely talking about in the United States.

Emily Bazelon:

Exactly. And it's an important distinction and you can see it in the court's responses to the 2020 election challenges from former President Trump. If the court was merely an instrument of a strong man, they would've gone along with those challenges, which had very little evidence behind them.

Ian Bremmer:

And they all failed.

Emily Bazelon:

They all failed. The court said, "No." It's not interested in saying, "We are a tool of President Trump the way the constitutional court in Hungary has unfortunately become a tool of Viktor Orbán."

Ian Bremmer:

So can we say, not a fact free zone? The independence of the judiciary in that regard continues to be strong.

Emily Bazelon:

Yes. I think that's absolutely true. It's also true that on these big questions about what equality means or liberty, how that affects things like abortion or access to guns or religion, there's a lot of wiggle room here. And so you can be a perfectly independent judge or justice and come to a really different conclusion based on your ideological beliefs and values. And I think that's what we see in these big cases where you see conservatives dividing from liberals.

Ian Bremmer:

Well, thanks for helping explain that. Emily Bazelon, great to see you.

Emily Bazelon:

Thanks so much for having me.

Ian Bremmer:

That's it for today's edition of the GZERO World Podcast. Do you like what you heard? Of course you did. Well, why don't you check us out at Gzeromedia.com and take a moment to sign up for our newsletter? It's called GZERO Daily.

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The GZERO World Podcast is brought to you by our founding sponsor, First Republic. First Republic, a private bank and wealth management company places clients' needs first by providing responsive, relevant and customized solutions. Visit Firstrepublic.com to learn more. GZERO World would also like to share a message from our friends at Foreign Policy. An endangered porpoise, a fish whose bladder fetches tens of thousands of dollars on the black market, the highly desirable and delicious, Colossal Shrimp. Travel to the Gulf of California on a new season of The Catch, a podcast from Foreign Policy and the Walton Family Foundation. You'll hear about the tension local fishermen face in providing for their families and protecting marine habitats and your role in returning balance to the environment. Follow and listen to The Catch wherever you get your podcasts.

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